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Colorado trial attorneys

Can you get a DUI for driving with a hangover?

On behalf of Dolan + Zimmerman LLP April 5, 2019

Going out with friends last night, you thought you did the right thing. You had too much alcohol to drink, or used too much of some other substance, and decided to play it safe and spend the night.  No need to risk a drunk driving or intoxicated/impaired driving arrest. In the morning – maybe feeling not the greatest from the night before – you took a Tylenol, washed it down with a big glass of water and started the drive home.

In between your friend’s home and your place, you are pulled over though. Have you been drinking or using drugs? Not recently. Yet you wind up arrested for drunk driving.

It feels like a slap in the face. You took specific steps to avoid a driving under the influence arrest, yet here you are, the morning after drinking facing a DUI charge anyway.

Were you over the legal limit?

During a DUI traffic stop – whether it is at night or during the day – an officer should be following the same protocols. Typically, this will involve asking you to submit to a breath or blood test.

In Colorado, there are two different levels to drunk driving, both based on your blood alcohol content.  These are:

  • If your BAC is .08 percent or higher within two hours of driving, you will be charged with Driving Under the Influence (DUI)
  • If your BAC is between .05 and .08, you will most likely be charged with Driving While Ability Impaired (DWAI)
  • If your BAC is below 0.05, you may still be charged with DWAI depending on your driving, on your performance on voluntary roadside maneuvers, and on the police officers’ observations of your demeanor and behavior. Particularly you are under the age of 21, you could be arrested even if your BAC is under .05.

Did you fail the field sobriety tests?

Police officers in Colorado use three standard field sobriety tests:

  • Walk-and-turn: This is when an officer has you walk – heel to toe – in a straight line, before turning around and walking back in the same fashion. During this time, the officer is checking for your balance.
  • One-leg stand: This is when the officer will have you stand on one foot. The officer is looking for issues with balance here too.
  • Horizontal gaze nystagmus: Typically, a police officer will have you follow a pen or a light with your eyes. The officer is looking for an involuntary jerking of the eyes when you look to the side.

As you can imagine, factors outside of impairment can affect your ability to perform field sobriety tests. Not everyone has good balance, for example. And while a jerking of the eyes could point to impairment, there are certain medical conditions that also affect this. Additionally, if it is the morning and you are still rather tired, this too can make the jerking worse.

 What happens now?

Whether you are arrested the night of – or the day after – drinking or using drugs, you have the same option: To contact an attorney to discuss your case. The police officer’s write up does not need to be the final say, and your case may present legal and factual issues that your lawyer can identify to ensure that you receive a fair outcome.